restrictive building covenant

What is the name of your state (only U.S. law)? Wisconsin

In 2009 my wife and I took out a construction loan and purchased a single lot of property in a newer development outside of Madison. We had a home built and from the beginning all the way through the closing there was no mention of a restrictive building covenant. We closed at the end of October beginning of November in 2009. Spring of 2010 I decided to finish my basement and put a storage shed in my back yard. I went down to the city and was approved for a building permit with the drawings that I provided. I then asked one of the contractors that worked on my home for a wheel barrow and mentioned the shed to him. He then told me that he believed there is a restrictive covenant in the area and that I needed the approval of the two parties who held the rights to the covenant before proceeding. I then contacted the title company via email (I still have the emails) and asked them for a copy of this covenant. I followed the rules and built the shed.

Now I want to put up a 6' fence on my property which the city will allow but the covenant does not allow this. I have the approval from one of the parties but not the other. At this point I am wondering if I have to follow the actions of the covenant since I was never made aware of it prior to purchasing and building. According to some articles that I have read you must be made aware of the covenant by the seller in order for it to be valid. There are also several violations to the covenant that are not being enforced even after people from the neighborhood have complained to the covenant controllers.

According to some articles that I have read you must be made aware of the covenant by the seller in order for it to be valid.

does your deed say something like: subject to all liens, restrictions, encroachments , and (etc.) of public record? If so, if the covenant is recorded in any public record, you were given notice. It was not specific but it was your duty to practice due diligence and verify what that statement meant. You do not have to be made aware of the covenant specifically.

is the covenant simply a deed restriction or is there a home owners association or such?

The above is the link to the covenant. The Covenant speaks of an association with dues but nobody in the neighborhood is paying any dues. Also it speaks of meetings but nobody in the neighborhood is aware of any meetings being held.

I was told that there was a covenant on April 27th, 2008 from another home owner in the area. He suggested that I get in touch with the title company where we closed for a copy. I contacted them and they mailed me one.

The other thing is the developer The Nelson Group is in Chapter 11 bankruptcy and is close to have the bank foreclose on the remaining lots they have.

Let me know if you have any other questions that I can try and get answers to. Thank you!

but, since it appears the title company had located and sent you a copy of the covenant, I would have to presume you were given notice, at least by the means I stated. As such, there was no error in the notice and you are bound by the covenant.

So, to answer your basic question: yes, they can do that if the covenant states they can. That is part of belonging to an HOA.

Now, the other question that you might have:

without an actual HOA, can you be forced to comply?

If the others are willing to push the issue, yes. They can sue you to have a court order you to comply with the covenant and, based on what you have stated so far, will win. The CC&R's of an HOA can be enforced even though they are more restrictive than the governmental municipality's restrictions.

. There are also several violations to the covenant that are not being enforced even after people from the neighborhood have complained to the covenant controllers.

Just who are the covenant controllers? If there is simply a couple folks playing leader of the HOA, then you have a problem. There are actual laws the HOA must follow.

It sounds like you might want to spend a couple bucks and have a lawyer review the situation. You might find out the HOA is not in compliance with the law and at least you would be able to either get it to change and become compliant or; if there is no real HOA and you have a couple rogue property owners playing like they are the HOA, you can get that stopped and install a proper HOA.

but, since it appears the title company had located and sent you a copy of the covenant, I would have to presume you were given notice, at least by the means I stated. As such, there was no error in the notice and you are bound by the covenant. I have the packet from when we closed with the title company. Every document we received we had to initial stating that fact. There is not a copy of the covenant in that packet. I have checked several times.

So, to answer your basic question: yes, they can do that if the covenant states they can. That is part of belonging to an HOA. The builder and developer never mentioned a HOA. Dues are not collected. There are no monthly meetings.

Now, the other question that you might have:

without an actual HOA, can you be forced to comply?

If the others are willing to push the issue, yes. They can sue you to have a court order you to comply with the covenant and, based on what you have stated so far, will win. The CC&R's of an HOA can be enforced even though they are more restrictive than the governmental municipality's restrictions.

Just who are the covenant controllers? If there is simply a couple folks playing leader of the HOA, then you have a problem. There are actual laws the HOA must follow. The controllers are the developer for this subdivision and the developer for the adjacent subdivision. The original developer from our subdivision signed over 50% control of his subdivision covenant a couple years back.

It sounds like you might want to spend a couple bucks and have a lawyer review the situation. You might find out the HOA is not in compliance with the law and at least you would be able to either get it to change and become compliant or; if there is no real HOA and you have a couple rogue property owners playing like they are the HOA, you can get that stopped and install a proper HOA.

I have the packet from when we closed with the title company. Every document we received we had to initial stating that fact. There is not a copy of the covenant in that packet. I have checked several times.

there doesn't have to be the actual covenant if it was registered and your deed said you were obligated to abide by any covenants of public record.

The builder and developer never mentioned a HOA. Dues are not collected. There are no monthly meetings.

The controllers are the developer for this subdivision and the developer for the adjacent subdivision. The original developer from our subdivision signed over 50% control of his subdivision covenant a couple years back.

Ok, now it makes sense. When a development is created, for some period of time, the developer acts in place of the HOA. They enforce the CC&R's. Once they relinquish control of that portion of the development, the HOA is created. Then you will have to pay dues and deal with them for rules.

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